Whether they had a strong lobby or not, representatives of the state, municipalities and banks, reserved the right to take out a writ of execution against debtors under the fast procedure. This right is given to them under Art.417, section 2 of the Civil Code. With the present decision the judges just confirmed that it does not contravene the provisions of the fundamental law of the Republic of Bulgaria. Thus, the fair request of the Ombudsman Konstantin Penchev for repealing this provision of the Civil Code and confirming the principle of equality of creditors was sent to oblivion. In his request the Ombudsman wrote that this procedure places certain creditors in a more favorable position and that there is no reason for the existence of a privileged mode for anybody.
In their arguments to the decision (№ 12 of October 2) judges dismiss the reasoning of the Ombudsman and there was option even not to view the petition. The Ombudsman is limited in the exercise of his power and cannot challenge a law which infringes the rights of some entities at the expense of more favourable conditions for doing business that are created for others, said the judges. But they assumed that the Ombudsman has meant citizens and their relationship with the government and banks. It turns out that Mr. Penchev’s request was viewed only because of this presumption. Then, the Constitutional Court held that the rapid issuance of writ meets all regulatory practices in Bulgaria and EU directives. It indicated several countries where such a measure is in force – Austria, Belgium, France, Germany, Spain, Portugal, Greece, Luxembourg, the Czech Republic, Sweden and some others.
Mr. Penchev’s statement that there were no ground in the civil procedure code to make changes allowing fast issuance of writs has also been rejected. The Constitutional Court also rejected the argument a rapid procedure for writs of execution is a practice of the totalitarian past. It was introduced by the Law on Litigation (from 1897) and then the enforcement order was regulated by the Civil Procedure Act from 1934. In a later version of the same law (since 1942) with Art. 156a – art. 156ch the procedure got more precise legal regulation in three separate parts, says the reasoning of the Constitutional Court.
The thesis of the Ombudsman that debtors are at a disadvantage to the state, municipalities and banks have also been refuted. The Constitutional Court identified several ways in which the debtor may block the enforcement procedure. One is by providing adequate collateral. The debtors can defend themselves through submitting a counter claim or contest the initial claim, based on newly discovered circumstances or new written evidence of essential importance to the case, the judges explained. Another form of protection is the petitioning to the court based on violations of procedural rules. The law has provided many different ways containing the required constitutional safeguards for the debtor to exercise his right of defense in the proceedings, is the conclusion of the Constitutional Court.
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